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From Arrest To Trial – How A Crime Becomes A Criminal Charge, Part II

Last week we looked at the process of charging individuals with crimes from arrest through the prosecutor’s part in the process. This week we will finish the discussion of the process, starting with the grand jury.

Grand Jury

When the prosecutor decides to go forward with a criminal charge, he or she has a choice in most states to file the complaint with the trial court or to present the case to a grand jury. In the federal system, felony prosecutions are required to go through a grand jury.

The grand jury is a safeguard in the court system intended on preventing prosecutors from inventing serious criminal charges without any proof. Grand juries generally have more members than juries in criminal charges, and they are not tasked with deciding guilt or innocence on the charges themselves. Rather, their function is to determine whether there is sufficient evidence to justify a criminal charge and what those criminal charges ought to be.

Sol Wachtler famously said many years ago that a competent prosecutor can get a grand jury to “indict a ham sandwich.” Though this is a somewhat cynical take, it does express the influence over which the prosecutor has on the grand jury. Grand jury proceedings are secret, so the accused may not even know the proceedings are going on.

Those individuals who are targets of a grand jury do not have the right to counsel at the proceedings either, so the only evidence shown to a grand jury is the evidence the prosecutor wishes for them to see. Frequently a grand jury proceeding is used as a “dry run” by prosecutors preparing for the actual trial they expect to have after the grand jury indicts.

Typically, grand juries are given a bill (a list) of charges the prosecutor wishes to place on the potential defendant. The prosecutor then presents the witnesses and other evidence he or she has collected. Unlike trials on the merits, grand juries are allowed to question the prosecutor or witnesses directly about their testimony or the evidence presented. They will also see evidence that may not be admissible in trial, as the potential defendant is not present to object to such evidence.

Unlike trial juries, grand juries may indict an individual with less than a unanimous vote. Generally, 50% plus one is enough to make a decision in favor of indictment. In this case, the grand jury is said to return a “true bill,” or an agreement with the charges the prosecutor presented them. The prosecutor may then go forward to charging the defendant with the charges on the true bill.

If the grand jury does not find enough evidence to support the charges the prosecutor presented it, it returns a “no bill.” This is usually fatal to felony charges, but in most jurisdictions the prosecutor may still go forward with any misdemeanor charges he or she may have presented.

If the prosecutor’s charges are no-billed, he or she may return to the grand jury within a set period of time additional evidence to support the charges. The prosecutor may also call a new grand jury and present the new body with evidence as well.


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